How to fix 18C without having to repeal it

(a) the act is reasonably likely, in all the circumstances, to offend, insult or humiliate another person or a group of people, when it is done in the course of abuse, intimidation, incitement and/or vilification;

In that way the section would then comply with the Convention and would also come within the general 'test' of free speech, as well as meeting the views of both 'camps' intent upon keeping/repealing the section as presently enacted.

The freedom of speech 'test' referred to, like that of freedom of expression generally, is the balance between hurt and harm. That is to say the law has never been concerned about the use of words, sounds, conduct or images that may only hurt the feelings or upset the sensibilities of a person or group, but whether those words, etc, have caused actual harm to that person or group – as in defamation, economic loss, damage, disadvantage, physical and mental health or any other such detriment.

Thus, when that 'test' is applied to attitudinal law (ie, 'mind set' law) which is the regulation of people's attitudes towards others in matters of bias, discrimination, equal opportunities, etc, for non-harmful words, sounds, conduct or images to constitute harm they must be used in a harmful way.

So it is, that an act (conduct) proscribed by the word "intimidate" in section 18C is properly regarded as harmful; whilst acts proscribed by the words "offend, insult and humiliate", without more, are not.

(The suggestion by some advocates that "humiliate" should remain on the harmful side of the 'test' is ill-conceived. It still lets in vexatious claims in cases such as those of the QUT students and the Bill Leak cartoon.)

The absurdity of the present situation is that there are quite a few other acts, state and federal, relating to discrimination on the grounds of age, disability, political opinion, pregnancy, religious belief, gender identity, dress appearance, breast feeding, marital status, etc, in respect of which it could be contended that what's good for the Racial Discrimination Act is good for those other acts as well.

So, for example, if it were unlawful to offend, insult or humiliate a person on the grounds of age, then someone who might call his neighbour a "stupid old bugger" could well end up before the Human Rights Commission charged with discrimination on account of that person's age.

(I leave it to readers to imagine for themselves some of the unintended possibilities whereby they might breach the law in regard to such other grounds of discrimination if the same provisions as in 18C were to apply.)

As for section 18C, if it's too hard politically to repeal then at least bring it within the context of proper law. As it stands it does not constitute a human right. Freedom of expression does.